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Gujarat High Court · body

2017 DIGILAW 1390 (GUJ)

Harisinh D. Solanki v. State of Gujarat

2017-08-08

K.M.THAKER

body2017
JUDGMENT : Heard Mr. Soni, learned advocate for the petitioners, and Mr. P.K. Jani, learned Additional Advocate General, with Mr. Swapneshwar Goutam, learned AGP and Mr. Patel, learned advocate for the respondent Nos.4 to 7. 2. In this group of petitions, the concerned petitioners have prayed for almost similar relief. Therefore, to consider the claim of the petitioners, the relief prayed for by the petitioner in Special Civil Application No.7399 of 2002 is taken into consideration. The petitioner in the said petition has prayed, inter alia, that:- “29(B) By issuing appropriate writ, order and direction, the order dated 27-7-2002 Annexure A passed by the respondent no.2 herein be quashed and set-aside; further, respondent no.1 to 3 be directed to consider the case of the petitioners for the promotion to the post of Forester with the deemed date, i.e., 27-7-2002; and till the respondent authority considers the case of the petitioners for promotion, the promotion given to respondent no.4 to 7 be kept in abeyance and subject to final decision in this petition and the petitioners be promoted with retrospective effect from 27-7-2002 and all petitioners be given all the financial and other benefits available on the basis of the said promotion or in the alternative the promotions given to respondents no.4 to 7 by respondent no.2 be cancelled and set aside. (B)(2) By issuing appropriate writ, order and direction, to quash and set aside the order dated 26-9-2002 Annex. D passed by the respondent no.2 whereby Forest Guards are appointed for the post of Forester under Direct Selection.” 3. So far as factual background is concerned, it has emerged from the record that at the relevant time, the petitioners were serving as Guard in Forest Department under Banaskantha division. The petitioners have claimed that they were eligible for and qualified for being appointed as Forester and they possess requisite qualification prescribed under Foresters (Subordinate Forest Service) Recruitment Rules, 1969. The petitioners have also averred and claimed that the petitioners are senior to respondent Nos.4 to 7. It is also claimed that the petitioners have passed final examination conducted by the department after completion of guard training. 3.1 It is claimed that Mr. H.D. Solanki, completed guard training and passed final examination in 1984, Mr. R.N. Kad, completed guard training and passed final examination in 1985, Mr. S.A. Nagori, completed guard training and passed final examination in 1985, Mr. 3.1 It is claimed that Mr. H.D. Solanki, completed guard training and passed final examination in 1984, Mr. R.N. Kad, completed guard training and passed final examination in 1985, Mr. S.A. Nagori, completed guard training and passed final examination in 1985, Mr. H.B. Chauhan, completed guard training and passed final examination in 1985 and Mr. M.H. Parmar, completed guard training and passed final examination in 1984. 3.2 The petitioners have further claimed that the respondent authority/department published seniority list on 5.2.2009. The names of the petitioners appeared at serial Nos. 28, 48, 53, 64 and 93 whereas the names of respondent Nos.4 to 7 appeared at serial Nos.62, 90, 119 and 140. On the strength of the said details, the petitioners have claimed that the petitioners were senior to respondent Nos.4 to 7 in Banaskantha division. 3.3 The grievance of the petitioners is to the effect that though (a) they possess requisite qualification for being appointed as Forester and that though (b) they have also successfully completed guard training and have also passed final examination and though (3) they are senior to the respondent Nos.4 to 7, they have not been promoted to the post of Forester whereas the respondent Nos.4 to 7 were promoted to the post of Forester. According to the petitioners, they have been wrongly deprived of promotion and that therefore, their case should be considered for promotion to the post of Forester from the date prior to the date when respondent Nos.4 to 7 came to be promoted or atleast from the date when the respondent Nos.4 to 7 came to be promoted as Forester. The petitioners have also prayed for promotion on “deemed date” basis. It is also claimed that their service record is blotless and there was no ground or justification for not promoting the petitioners prior to respondent Nos.4 to 7 or atleast simultaneously with respondent Nos.4 to 7. 3.4 With said allegations and on said premise, the petitioners have prayed for above quoted relief. 4. The respondent State has opposed the petition and the claim raised by the petitioners. 3.4 With said allegations and on said premise, the petitioners have prayed for above quoted relief. 4. The respondent State has opposed the petition and the claim raised by the petitioners. The respondent State has claimed that the respondent Nos.4 to 7 came to be promoted in light of provisions contained under applicable Rules, more particularly in light of the fact that the said respondents not only successfully completed guard training but they stood first in examination and that therefore, said respondent Nos.4 to 7 came to be appointed as Forester. 4.1 The respondent State has, then, setup different/opposite case and it is claimed that the said respondent Nos.4 to 7 have not been “promoted” to the post of Forester, but they came to be appointed as Forester in accordance with applicable Rules, more particularly Rule 6 of Forest (Subordinate Forest Service) Recruitment Rules, 1969 and the allegation that the State promoted the said respondents is incorrect and misunderstanding of fact by the petitioners. 4.2 The respondent State has averred and stated, in the reply affidavit made by Mr. M.A. Chavda, Assistant Conservator of Forest, that:- “3. l say that in para 29 of the present petition, the petitioners have prayed for issuance of appropriate write and for quashing and setting aside the order dated 27th July, 2002 and further prayed for appropriate direction to consider the case of the petitioners for the promotion to the post of Forester with the deem the from 27th July, 2002. I say that looking to the disputed questions of fact involved and even otherwise also in the facts and circumstances such prayers cannot be entertained in the writ jurisdiction of this Hon’ble Court. I say that from the post Beat-Guard to the Forester direct selection is being made on the basis of the passing the Beat-Guard Training Exam. I say that candidate who stood first is eligible for claiming the post of Forester by way of direct selection. I say that the present petitioners have not accordingly passed the exams and they have not stood first and, therefore, the petitioners cannot be selected on the post of Forester. I say that only on this short question the petition deserves to be dismissed. In view of the Rule 6(3), it is specifically stated that candidate who stood first in the Guards training examination is eligible for the selection on the post of Forester. .... I say that only on this short question the petition deserves to be dismissed. In view of the Rule 6(3), it is specifically stated that candidate who stood first in the Guards training examination is eligible for the selection on the post of Forester. .... The candidate is not required to appear in the written examination as well as oral examination, if the candidate has secured first rank in the Guards training examination. I say that the present petitioners have not passed examinations at rank No.1 and therefore, they are not eligible to claim the benefits of exemption of Rule 7 and, further, they are also not eligible to pursue the department to select them as Forester. I say that it is not true that the respondents are promoted from the post of Beat-Guards to Forester as alleged by the petitioners but as a matter of fact as the respondents have stood first in Guard training examination they are selected and recruited as Forester. I say that the Rules quoted hereinabove i.e. rules 6(3) and 7 are incorporated in Gujarat Forester Manual Column 1 and the extract of the said Rules is reproduced in the said affidavit. I say that in view of the above true facts there are no merits in the petition. The foundation of the petition that the respondents are promoted the post of Beat Guard is based on purely misunderstanding on the part at the respondents or they have not understood properly the rules and deliberately with ulterior motive the petitioners have field this petition. I further state that even if there was some misunderstanding about the order dated 27.7.02 the was clarified through the corrigendum dated 26.9.2002 say that under the circumstances the respondents, Forest Department. State of Gujarat requests this Hon'ble Court to dismiss the petition in the facts and circumstances at the case.” 5. Mr. Soni, learned advocate for the petitioners, reiterated above mentioned factual aspects and submitted that the respondents have acted illegally and arbitrarily while promoting respondent Nos.4 to 7. He made reference of the order dated 27.7.2002 issued in favour of respondent Nos.4 to 7 and he submitted that the said order specifically mentioned that the persons whose names appear in the order have been “promoted” to the post of Forester. He made reference of the order dated 27.7.2002 issued in favour of respondent Nos.4 to 7 and he submitted that the said order specifically mentioned that the persons whose names appear in the order have been “promoted” to the post of Forester. He further submitted that after having declared that the said persons (the respondents) were promoted to the post of Forester, the respondent State realized its mistake and that therefore, the State changed its stand and the respondent State subsequently claimed in the affidavit that said persons were “not promoted” but they were “appointed” to the post of Forester. On this count, Mr. Soni, learned counsel also placed reliance on the order/corrigendum dated 24.9.2002 whereby the respondent State clarified that the previous order dated 27.7.2002 should be read as the order of “appointment” of the persons whose names are mentioned in the order and that the said persons are “appointed” to the post of Forester by “direct appointment”. He submitted that even if the case of said respondent Nos.4 to 7 is to be considered as case of direct appointment, then also, the action of the respondent should fail in view of the fact that the procedure prescribed by Rules for appointment was undisputedly not followed by the respondent State and the promotion or appointment of the said respondents was illegal, unauthorized and in breach of the Rules. He also submitted that the case of the petitioners should have been considered before the respondent Nos.4 to 7. He submitted that in light of the factual background, the order dated 27.7.2002 should be quashed and respondent Nos.1 to 3 should be directed to consider the case of the petitioners for promotion to the post of Forester w.e.f. 27.7.2002. The petitioners have also ventilated their grievance that until the Respondent Nos. 4 to 7 came to be appointed/promoted to the post of Forest Guards, the department had always promoted employees to the post of Forest Guards on the basis of seniority. It is also claimed that the employees whose names appear at Serial No. 1 to 27 in the seniority list were also promoted according to their seniority and only in case of present Respondent Nos. 4 to 7, the authorities adopted another procedure and thereby ignored and frustrated their case by promoting Respondent Nos. 4 to 7 to the post of Forest Guards. 6. Mr. 4 to 7, the authorities adopted another procedure and thereby ignored and frustrated their case by promoting Respondent Nos. 4 to 7 to the post of Forest Guards. 6. Mr. Jani, learned Additional Advocate General, submitted that the petitions and the contentions raised by the petitioners are misconceived. He submitted that the concerned persons i.e. respondent Nos.4 to 7 came to be appointed by direct appointment in accordance with Rule 6 of the Rules. He submitted that the respondent Nos.4 to 7 had passed final examination, upon completion of guard training class with first rank and since the said respondents ranked first in the examination, they came to be appointed in accordance with sub-clause (iii) of Rule 6 and that therefore, there is no irregularity or illegality. He submitted that any person who did not pass the examination with first rank has not been appointed and it is not the case of the petitioners that they had passed the examination with first rank. Thus, the case of the petitioners were not considered at the time when the respondent Nos.4 to 7 came to be appointed. He also submitted that none of the petitioners had passed examination with first rank and that therefore, their case did not fall within purview of sub-clause (iii) of Rule6 and consequently, the case could have been considered. The singular defence raised by the Respondent is that the respondent nos. 4 to 7 came to be promoted in view of the fact that they stood first in departmental Guards Training Class final examination. 6.1 Besides the said submission, Mr. Jani, learned Additional Advocate General submitted that all petitioners have retired from service and that therefore, now, question of considering their case for promotion to the post of Forester does not survive and actually, with passage of time and in view of the nature and scope of the demand, the petitions are rendered infructuous. 7. I have considered rival submissions and material available on record. 8. Certain facts are not in dispute. It is undisputed that at the relevant time the petitioners were employed as and were serving as Beatguard in forest department with the respondents. 8.1 It is also not in dispute that in February, 2001, the competent authority of the respondents had published seniority list which declared interse seniority as on 1.1.2001 wherein the names of the petitioners appeared at Sr. 8.1 It is also not in dispute that in February, 2001, the competent authority of the respondents had published seniority list which declared interse seniority as on 1.1.2001 wherein the names of the petitioners appeared at Sr. No. 28, 42, 53, 64 and 93 whereas the names of the Respondent Nos. 4 to 7 appeared, in the said seniority list, at Sr. No. 62, 90, 119 and 140 respectively. 8.2 It is not in dispute that the petitioners as well as respondents have passed the Guards Training Class final examination. 8.3 It is also not in dispute that the respondent Nos.4 to 7 secured first position in said examination. On the other hand, the petitioners, undisputedly, did not secure first position in said examination. 9. The petitioners claim that the said respondents No.4 to 7 came to be promoted by ignoring the fact that they (the petitioners) are senior to said respondents. The petitioners have also contended that even if the authority's claim that said 4 respondents came to be appointed – by way of direct selection – then such appointment could not have been made without following procedure prescribed by the Manual. 10. So as to consider rival contentions by the claimant and defence of the respondents, it is relevant and necessary to turn to relevant provisions of Forester (Subordinate Forest Service) Recruitment Rules, 1969. 10.1 The said Rules provide 2 modes for appointment to the post of Forester in the lower subordinate forest service viz. (i) by promotion; and (ii) by direct selection. The said provision is found in Rule 2 of above mentioned Rules. Rule3 of the said Rules provide eligibility criteria for appointment by direct selection to the post of Forester. 10.2 It is not in dispute that the petitioners as well as Respondent Nos. 4 to 7 fulfilled the said eligibility criteria prescribed by Rule 3 of the said Rules. 10.3 Rule 4 of the said Rules provides, inter alia, that the appointment by direct selection and by promotion to the post of Forester, shall be in ratio of 1:2. Rule 5 of the said Rules prescribes, inter alia, that the Guards who have passed Secondary School Certificate Examination or its equivalent and who fulfill prescribed criteria with regard to age limit and physical standards shall be eligible to compete for direct selection to the post of Forester. Rule 5 of the said Rules prescribes, inter alia, that the Guards who have passed Secondary School Certificate Examination or its equivalent and who fulfill prescribed criteria with regard to age limit and physical standards shall be eligible to compete for direct selection to the post of Forester. 10.4 The provisions under Rule 6 and 7 are relevant and vital for examining rival contention. With reference to the said Rules, it is relevant to note that the said Rules 6 and 7 are applicable in case of direct appointment and not in case of promotion. 11. The petitioners have also placed reliance on Forest Manual. It is claimed that according to the provision under Chapter-IV of Part-I of the Gujarat Forest Manual Volume-1, under Clause 7 contain provision regarding recruitment to the post of Forester. It is provided, inter alia, that “For direct appointment of Foresters, a list of candidates should be obtained from local employment exchange and candidates shall be selected from among the list”. 12. The case which is made out by the respondents is that in view of the provision under Clause (iii) of Rule-6 of the Forester (Subordinate Forest Service) Recruitment Rules1969, the competent authority is authorised to select and appoint Forester from amongst the Guards who stood first in Guards Training Class final examination and that the respondent Nos. 4 to 7 had, undisputedly ranked first in the final examination of the departmental Guards Training Class. 12.1 The respondent authorities have relied on clause (iii) of Rule 6 and it is claimed that respondent Nos. 4 to 7 came to be appointed in light of the said provision. 12.2 The petitioners have placed heavy reliance on order dated 27.7.2002. The said order is placed on record at Annexure A (page-15). From the said order dated 27.7.2002, it emerges that the said order is order of Promotion and not order of Appointment. Plain reading of said order gives out that the concerned respondents were promoted to the post of Forester. 12.3 In t his context, it is also relevant to note that a copy of another order dated 27.7.2002 is also placed on record which is issued in favour of/in name of present Respondent Nos. 4 to 7. Even the said order (Annexure “B” Page-17) bring out that the respondent nos.4 to 7 were “promoted” to the post of Forester. 12.3 In t his context, it is also relevant to note that a copy of another order dated 27.7.2002 is also placed on record which is issued in favour of/in name of present Respondent Nos. 4 to 7. Even the said order (Annexure “B” Page-17) bring out that the respondent nos.4 to 7 were “promoted” to the post of Forester. The said another order dated 27.7.2002 (Annexure B Page-17) also is order of “Promotion” and not order of Appointment. 13. Now it is necessary and appropriate to turn to the documents at Annexure “D” Page 34. 13.1 On reading the said document, which is an order dated 24.9.2002 passed by Conservator of Forest, it comes out that it is correction or rectification of or corrigendum to the order dated 27.7.2002 so as to convert the said order dated 27.7.2002 from “Order of Promotion” to Order of “appointment”. 13.2 By virtue of the document at Annexure “D” at page 34 i.e. the order dated 24.9.2002, it is mentioned and declared by the respondent authorities that the order dated 27.7.2002 “should be read” as “Order of “Appointment” by direct selection” as Forester instead of “Promotion” to the post of Forester. 13.3 Thus, from the said 3 document i.e. orders dated 27.7.2002 (Annexure “A” Page 15, Annexure “B” Page 17 respectively and Annexure “D” at Page 34), it comes out that the Respondent Authorities had initially declared that the persons whose names appeared in the order dated 27.7.2002 were “promoted” to the post of Forester. Subsequently, the Authorities declared that the said persons were not “promoted” but they were “appointed” by way of direct appointment. 14. In this context, it is relevant to note that the provisions under the Forest Manual require that when direct appointment is to be made to any post by way of direct selection then names from employment exchange should be called for and opportunity of selection should be granted to all eligible persons who may be qualified and eligible as per the said Rules. Differently put, direct appointment (by direct selection) should not be made without inviting application/ names of all eligible and interested candidates. 15. On this count, it is also relevant to take into consideration that Rule-6 (on which respondent authorities placed reliance) provides, inter alia, that “The guard having following qualification shall also be eligible to compete for selection”. 16. Differently put, direct appointment (by direct selection) should not be made without inviting application/ names of all eligible and interested candidates. 15. On this count, it is also relevant to take into consideration that Rule-6 (on which respondent authorities placed reliance) provides, inter alia, that “The guard having following qualification shall also be eligible to compete for selection”. 16. The words “eligible to compete for the selection” are crucial in view of the provision under Note4 of Clause-7 of Part-I of Chapter4 in the Forest Manual which provide, inter alia, that for direct appointment to the post of Forester list of candidates should be obtained from local employment exchange and that both provision need to be read together conjointly. 16.1 From conjoint reading it becomes clear that when appointment by way of direct selection to the post of Forester has to be made, then in that event the guard who stood first in Guards Training Class final examination, shall be merely “eligible to compete for selection” and they will have to “compete” with the candidates whose names are invited from/forwarded by employment exchange. 16.2 The group comprising candidates from both streams must “compete” and the competent authority shall be obliged to select candidates from amongst the guard who stood first in Guards Training Class final examination and the person whose names are forwarded from employment exchange. 17. According to the petitioners, the competent authority should follow the procedure prescribed under the Manual as well as said Rules, at the time when the post of forester is to be filled up by direct appointment and the authority cannot proceed to appoint such guards without granting opportunity to other eligible candidates entitled for competing for the post of forester. 17.1 The said procedure is undisputedly not followed by the respondent authorities at the time when the respondent Nos.4 to 7 came to be appointed. 17.2 It is also true that due to such action, the appointments came to be made without inviting the names of eligible candidates from local employment exchange and without granting opportunity to such other eligible persons and without subjecting the guards who stood first in the final examination of training, to competition with other eligible candidates. 17.2 It is also true that due to such action, the appointments came to be made without inviting the names of eligible candidates from local employment exchange and without granting opportunity to such other eligible persons and without subjecting the guards who stood first in the final examination of training, to competition with other eligible candidates. 17.3 However, in light of the facts of present case, the questions which arise at this stage in respect of present petitions are :- “(a) whether the said appointment which were made and effected way back in 2002 i.e. before almost 15 years should be disturbed at this stage or not, that too when the petitioners who raised the dispute in present group of petitions have retired from service before long time; and (b) more important question which arises is whether the said provision under the Manual is attracted and applicable in light of the facts of this case and whether it was necessary at all to call for the names from employment exchange.” 17.4 Further, since the petitioners have, in light of the order dated 27.7.2002 issued by the authorities, assailed the action on the premise that the action of the authority is of “promotion” to said 4 respondents, it would be appropriate to test the action/orders from both perspective i.e. if the order is treated as order of promotion whether the action would be just and legal and proper, or not, and if the order is treated as appointment, whether the action could survive in light of the provision and despite the defect of not inviting names from employment exchange. 18. This Court has examined the action from both perspective and in light of Rules 2 to 7 of said Rules. 19. From the material available on record and particularly from the orders dated 27.7.2002, it has emerged that initially the respondent authorities seem to have conducted entire process as process for promotion and the department even issued order of promotion in the name of and in favour of respondent Nos.4 to 7 whereby the said respondents came to be “promoted” to the post of forester/forest guard. 19.1 However, subsequently, i.e. after almost 7 months, the respondent authorities issued another order and declared – clarified that the said persons were appointed by way of direct selection and direct appointment. 19.1 However, subsequently, i.e. after almost 7 months, the respondent authorities issued another order and declared – clarified that the said persons were appointed by way of direct selection and direct appointment. For such purpose, the respondent authorities took recourse to Rule6 and claimed that the respondent Nos.4 to 7 were not promoted, but they were appointed by way of direct selection/direct recruitment. So as to support and justify the said change in their stand, the respondent authorities relied on provision under clause 3 of Rule 6. 20. So as to seek reply to above mentioned issues, it is necessary to turn to said Rules, particularly Rule 7 read with Rule 6(iii). On detailed and closure study of the Rules and relevant facts, it has emerged that the petitions and contentions are misconceived, without merits and untenable. From either of the said perspective, the action does not warrant interference. 20.1 In this context, it is necessary to keep in focus that from close examination of the Rules as well as the provisions under the Manual, it becomes clear that petitioners' case is (i) for promotion; and (ii) said claim is based on seniority. The premise and platform for the petitioners' claim and grievance is seniority alone. However Rule 2(a) is clear as crystal. From said provision, it comes out that the criterion for promotion to the post of Forester is (on the basis of) “proved merits and efficiency” not on the ground of “seniority” from amongst the guards. The said Rule 2(a) and 2(b) read thus:- “2. Appointment to the posts of Foresters in the lower Subordinate Forest Service, shall be made either :- (a) by promotion of a person of proved merit and efficiency from amongst the Guards; or (b) by direct selection.” 20.2 According to the said provision “seniority” is not relevant and/or applicable criterion. 20.3 In this context, it is relevant to note at this stage that the said Rules of 1969 are framed in exercise of power conferred by the proviso to Article 309. 20.4 When such Rules do not admit and do not recognize “seniority” as relevant criterion for promotion and the Rules do not even contemplate said criterion then Court would not read such criterion into the Rules. The Court cannot read into the Rules any criterion or requirement which is not provided for. 20.4 When such Rules do not admit and do not recognize “seniority” as relevant criterion for promotion and the Rules do not even contemplate said criterion then Court would not read such criterion into the Rules. The Court cannot read into the Rules any criterion or requirement which is not provided for. Under the applicable and relevant Rules, the only recognized criterion is “proved merits and efficiency”. The specific provision cannot be overlooked and any criterion or requirement cannot be read – into the existing and specific provision. 20.5 It is also relevant to note that in present case, the petitioners have not challenged the validity – vires of the Rules on any ground. 20.6 Therefore also, the Court has to examine impugned action of the respondents as well as petitioners' contentions within the confines and boundary of the Rules, as they stand. 20.7 Under the circumstances, the question which would arise is that whether it can be presumed that merely because the petitioners were senior to the respondent Nos.4 to 7, they were also meritorious and better in merits than the respondent Nos.4 to 7 or to any other eligible candidate, so as to claim promotion to the post of forester in preference over the respondent Nos.4 to 7. 21. Actually that is not the case even of the petitioners. 22. On this count, it is pertinent to note that the said 4 respondents secured first position in their respective final examine of Training Class. 22.1 On the other hand, the petitioners, undisputedly, did not secure first position in their respective class/examination. To this extent, the said 4 respondents can be considered “candidates/guards of proved merits/efficiency” as compared to the petitioners. 22.2 Further, the petitioners have, in the first place, not even claimed that they are more meritorious/efficient than said 4 respondents and/or any other guard. 22.3 Secondly, they have not placed any material in light of which it can be assumed that the petitioners should be considered more efficient/meritorious than others including said 4 respondents are not the persons/guards who can be considered guards of proved merits/efficiency. 22.4 Besides this, it is not even alleged that said respondents No.4 to 7 did not secure first position in their respective class/examination and/or that any person who did not fulfill/possess said criteria/qualification has been promoted/appointed. 22.5 It is pertinent that the petitioners have raised claim on singular premise viz. seniority. 22.4 Besides this, it is not even alleged that said respondents No.4 to 7 did not secure first position in their respective class/examination and/or that any person who did not fulfill/possess said criteria/qualification has been promoted/appointed. 22.5 It is pertinent that the petitioners have raised claim on singular premise viz. seniority. They have not raised their claim on the premise that they are more meritorious and efficient than the respondents and that having regard to the criteria of proved merits and efficiency the respondent Nos.4 to 7 could not have been appointed but they should have been appointed or that they should also be appointed. That is not the case of the petitioners or premise of the claim of the petitioners who have taken out these petitions on said singular ground viz. seniority. 22.6 In this context, it is also relevant to note that undisputedly the names of the petitioners appear at serial Nos.28, 48, 53, 64 and 93. Though name of the respondent No.4 whose names appeared at serial No.62 was junior to the petitioners whose names appeared at serial Nos.28, 48 and 53 he was certainly senior to the petitioners whose names appeared at serial Nos.64 and 93. Likewise, the respondent whose name appeared at serial No.90 in the seniority list was certainly senior to the petitioner whose name appeared at serial No.93. Of course, the respondents whose names appeared at serial Nos.119 and 114 were junior to all petitioners. 22.7 However, in absence of the employees/guards whose names appeared at serial Nos. 29 to 47, 49 to 52, 54 to 63 and 65 to 92 the claim of the petitioners cannot be examined and entertained. The petitioners have not impleaded the said persons in present petitions. 22.8 Thus, their claim and their petitions based on the criterion of seniority is not maintainable and does not deserve to be entertained, in absence of said guards as respondents. 22.9 When the petitioners – claimants do not join – as respondent/opponent – the persons who would be affected if their claim is granted, then the Court would be reluctant and loath to entertain such petition and to exercise prerogative and discretionary writ jurisdiction in absence of necessary and affected party. In such event, the Court would refuse to entertain the petition. This is one reason in light of which the petitions do not deserve to be entertained. In such event, the Court would refuse to entertain the petition. This is one reason in light of which the petitions do not deserve to be entertained. 22.10 It is pertinent that actually the criterion of seniority is not applicable and not even contemplated under the Rules. The criteria which is recognized and appealable by the Rules is of “proved merits and efficiency”. However, even if the criterion of seniority were to be applied then also the persons whose names appeared at serial Nos.29 to 47 would be eligible for appointment before the case of the petitioners whose names appeared at serial Nos.48, 53 and 64 as well as 93 could be considered. The said persons i.e. whose names appeared at serial Nos.29 to 47 are not before the Court and the said persons have not raised any dispute against selection of the respondent Nos.4 to 7. Those persons are not impleaded as opponents in present petition and in their absence, the case of the petitioners whose names appeared at Serial Nos.48, 53, 64 and 93 cannot be entertained. This is another reason in light of which the petitions do not deserve to be entertained. 22.11 Besides this, as mentioned above, the promotion to the post of forester/forest guard are to be granted on principle of proved efficiency and merits. 22.12 In absence of relevant material, which can demonstrate and establish relative or comparative merits and efficiency of the petitioners visavis other guards, more particularly said 4 respondents, this Court cannot assume and cannot conclude that the petitioners are of proved merit and efficiency and more meritorious than not only the respondent Nos.4 to 7 but more meritorious than other eligible candidates whose names appeared in the seniority list at serial Nos.29 to 47, 49 to 52, 61 to 63 and 65 to 92. In absence of such details, the petitions do not deserve to be entertained. This is third reason for not accepting the petitions/challenge against alleged/socalled promotion. 22.13 Actually, it is an undisputed fact that the respondent Nos.4 to 7 secured first position at the relevant time in the final examination whereas the petitioners did not secure first rank in the final examination at the relevant time when they appeared and succeeded in the examination. This is third reason for not accepting the petitions/challenge against alleged/socalled promotion. 22.13 Actually, it is an undisputed fact that the respondent Nos.4 to 7 secured first position at the relevant time in the final examination whereas the petitioners did not secure first rank in the final examination at the relevant time when they appeared and succeeded in the examination. 22.14 Thus, if first position in examination is accepted as yardstick then it would emerge that the respondent Nos.4 to 7 deserve to be considered more meritorious than the petitioners. 22.15 Even if the said aspect is not taken into account, there is neither any base nor any justification nor any material on strength of which it can be assumed that the petitioners are more meritorious than the respondent Nos.4 to 7 or more meritorious than other guards whose names appeared in the seniority list particularly the persons whose names appeared in the list before the names of the petitioners. 23. Thus, the contention and objection raised by the petitioners against the selection/appointment/promotion of said 4 respondents on the ground that “promotion” is effected/granted erroneously or in breach of Rules and in breach of seniority fails and deserves to be rejected and it is, accordingly, rejected. 24. In this view of the matter, coupled with the fact that the petitioners have retired from service before long time the claim made and relief prayed for by the petitioners that the promotion of the respondent Nos.4 to 7 should be cancelled and instead, the respondent authorities should be directed to promote the petitioners with retrospective effect i.e. w.e.f. 27.7.2002 cannot be entertained and granted. Actually, the claim or relief prayed for by the petitioners that the respondents be directed to consider the case of the petitioners for promotion to the post of forester with deemed date i.e. from 27.7.2002 also cannot be granted. Further, the appointment/promotion granted to the respondents way back in 1992 does not deserve to be disturbed after almost 15 years when most of the said respondents might have, by now, retired from service or might have been promoted to higher posts and when other guards who were senior to respondent Nos.4 to 7 have neither challenged the appointment/promotion of respondent Nos.4 to 7 nor they have been impleaded as parties in present petitions. 25. 25. Now, the case can be examined in light of the contention – defence setup by the respondents viz. that the respondents have been appointed as Forester, by way of direct appointment, it is necessary to consider relevant provisions. 25.1 On plain reading of the Rules, i.e. Foresters (Subordinate Forest Service) Recruitment Rules, 1969, it becomes clear that Rule No.7 is required to be read with Rule Nos.3, 4, 5 and 6. 25.2 Rule No.2 provides that appointment to the post of Foresters shall be made by two modes viz. promotion and direct selection. Rule 2(a) provides that for promotion, the criteria shall be “proved merit and efficiency”. 25.3 It is pertinent to note that the Rules particularly said Rule 2(a) does not provide for or does even contemplate principle of “seniority”, or even the criterion principle of “seniority-cum-merits”. The applicable criterion is only one viz. “proved merits and efficiency”. 25.4 So far as direct selection is concerned, Rule No.5 provides, inter alia, that for direct selection, the guard/candidate must have passed secondary school certificate examination or its equivalent and the guard/candidate should conform to the age limit and physical standards mentioned in Rule No.3(a) to (d). Differently put, the guards/candidates who fulfill the criteria prescribed under Rule 3(a) to (d) and who have passed secondary school certificate examination or equivalent would be eligible to compete for direct selection to the post of forester. The said Rule 5 provides, inter alia, that:- “5. The Guards who have passed the Secondary School Certificate Examination of its equivalent examination and who conform the above age limit and physical standards shall be eligible to compete for direct selection.” 25.5 Rule 6 of the said Rules provides, inter alia, that even the guards who possess qualifications mentioned under sub-clause (i) to (iii) of Rule 6 shall also be considered eligible to compete for the selection. 26. On reading above mentioned Rules 5 and 6, it becomes clear that both the rules deal with and make provision in the matters related to appointments to the post of Forester by “direct selection”. The said Rule 6 reads thus:- “6. 26. On reading above mentioned Rules 5 and 6, it becomes clear that both the rules deal with and make provision in the matters related to appointments to the post of Forester by “direct selection”. The said Rule 6 reads thus:- “6. The Guards having the following qualifications shall also be eligible to compete for the selection : (i) Those candidates who have minimum educational qualifications o 9th standard, and are under 30 years of age, and who have passed the final examination in the Guards training class and who also have at least 5 years service experience. (ii) Those candidates who have minimum educational qualification of 9th standard, and who also have not less then 10 years service experience. (iii) Guards who have stood first in the Guards Training Class final examination. 7. The selection of Guards to the post of Forester shall be made by written examination and oral examination except in the case of Guards, who have stood first in the Guards Training Class if their service records are good.” 26.1 It is true that the qualifications prescribed by virtue of sub-clause (i) to (iii) of Rule 6 provide different or additional criteria than what is prescribed by Rule 3 and while it is also true that even the guards who stand first (secure first position) in Guards Training Class Final Examination are also considered eligible for appointment by direct selection to the post of Forester. 27. In this context, the relevance of Rule 7 comes in picture. The said Rule 7 reads thus:- “7. The selection of Guards to the post of Forester shall be made by written examination and oral examination except in the case of Guards, who have stood first in the Guards Training Class if their service records are good.” (emphasis supplied) 27.1 The said Rule 7 also deals with the procedure of selection of guards to the post of forester. The said Rule 7 provides, inter alia, that such selection shall be made by written examination and oral examination. Meaning thereby, the competition which is mentioned in Rules 5 and 6 would be by way of and during the process of written examination and oral examination. 27.2 However, what follows, in the said Rule 7 is important inasmuch as the said Rule further provides “except in the case of guards who have stood first in the ...”. Meaning thereby, the competition which is mentioned in Rules 5 and 6 would be by way of and during the process of written examination and oral examination. 27.2 However, what follows, in the said Rule 7 is important inasmuch as the said Rule further provides “except in the case of guards who have stood first in the ...”. 27.3 The said Rule 7, thereby, carves out an exception with reference to written examination and oral examination in respect of the guards who secure first position in the Guards Training Class, provided their service record are good. 27.4 According to the said provision, the guards who stood first in the training examination and whose service record are good, need not be subjected to the written or oral examination. 28. Now, when the exception which is carved out and provided by the Rules is taken into account vis-a-vis the provision relied on by learned counsel for the petitioners (i.e. the provision in the manual which provide, inter alia, that names should be called from employment exchange) and when the said provision are read in juxtaposition, then, it becomes clear that in the cases where the appointment to the post of forester is to be made by process of direct selection only from one source viz. the guards who fall within purview of sub-clause (iii) of Rule 6 then, in that event, the requirement of calling for names from employment exchange would not be mandatory or relevant or necessary and such guards need not be subjected to written test and interview and they are not required to pass through said process. 28.1 Under the Rules, the said guards – who secure first rank in Training examination are considered separate or special category or separate class and separate – distinct source for selection and appointment. 28.2 Since the guard who secure first position in the examination are not required to pass through written and oral examination during the process of direct selection/appointment, the said requirement – procedure would not be attracted – applicable when the selection – appointment is to be made only from one source. 28.3 In such cases, the said guards are not required to appear in and pass through the process of written test and interview. 28.3 In such cases, the said guards are not required to appear in and pass through the process of written test and interview. Therefore, the provision – requirement (i) written and oral examination; and (ii) calling names from employment exchange would not be relevant and would not be attracted and applicable. 28.4 In light of Rule 7 read with Rule 6(iii), the contention challenging the selection and appointments of the respondents on the ground that names from employment exchange were not called for is not tenable because in present case the authority had decided to appoint Forester from only one source viz. guards who secured first position in training examination (and such guards are not required to pass through written and oral test). When Rules 5, 6 and 7 are read conjointly, it emerges that the department is authorized to appoint forester by mode of direct selection from amongst the guards who come within purview of sub-clause (iii) of Rule 6 and in that event the exception is carved out under Rule 7. It has also emerged that such process of direct selection can be, in given case, restricted from only one source i.e. from amongst the guards who fall within the purview of sub-clause (iii) of Rule 6. The said specific and express provision under the statutory Rules cannot be overlooked. 28.5 Further, it is pertinent that the petitioners, undisputedly did not secure first position in their respective training class examination. The petitioners, even otherwise, did not fall within purview of “consideration zone” for the process of selection and appointment from amongst the guards who secured first rank. 29. In present case, it is pertinent to keep in focus that, the Rules are not challenged on any ground, much less on the ground that the Rules are ultra vires or on the ground that the Rules are against public policy. Therefore, the case of the petitioners has to be considered strictly in light of the provisions as they exist. 30. When impugned action is considered in light of above discussed effect of Rules 2 to 7 particularly Rules 5, 6 and 7, it becomes clear that the impugned action cannot be faulted and the petitioners' objection must fail. 31. Now, I may address the last part of petitioners' contention viz. 30. When impugned action is considered in light of above discussed effect of Rules 2 to 7 particularly Rules 5, 6 and 7, it becomes clear that the impugned action cannot be faulted and the petitioners' objection must fail. 31. Now, I may address the last part of petitioners' contention viz. whether the impugned action can be considered as promotion to the respondent Nos.4 to 7 or it should be treated as appointments, as claimed by the respondent authority. 31.1 Actually, in light of foregoing discussion, the need to address the said part of the contention does not survive. However, it may be mentioned that in present case, the legality and validity of Rules is not challenged. Therefore, the Court has to examine the case of the petitioners within the confines of above mentioned provision and in light of said provision. 31.2 Further, even if the impugned action is treated as promotion, the petitioners' case and their contentions as well as their claim should fail in light of Rule 2(a) in light of which the principle or criteria which the respondent authorities would be required to apply is “proved merit and efficiency”. Rule 2(a) does not provide for or does not contemplate promotion on the ground of seniority or on the basis of seniority cum merits. The said Rule 2(a) is clear and it provides for promotion purely and only on the basis of “merit and efficiency”. On the other hand, the petitioners have based their case and raised their claim only on the ground of seniority and not on the ground that they are more meritorious/efficient than said 4 respondents. 31.3 In the first place, it is not even the case of the petitioners that they are eligible and better placed for promotion to the post of forester and they are more meritorious if promotions are effected by applying criterion of “merit and efficiency”. Their cases do not fall within purview of “proved merit and efficiency” and that is not even the base or premise of their claim. Besides this, there is nothing on record to establish that the performance of respondents No.4 to 7 was lower in rank or quality, than the petitioners during relevant period e.g. during previous three years and/or that confidential reports of the said respondents No.4 to 7 were not satisfactory or that on any yardstick the performance or service record, etc. Besides this, there is nothing on record to establish that the performance of respondents No.4 to 7 was lower in rank or quality, than the petitioners during relevant period e.g. during previous three years and/or that confidential reports of the said respondents No.4 to 7 were not satisfactory or that on any yardstick the performance or service record, etc. of the respondents No.4 to 7 was not good and/or that service record etc. of the petitioners was better and higher then respondents No.4 to 7 and/or that the petitioners are of better and higher merit and efficiency. Under the circumstances, even if the action of respondents No.1 to 3, i.e. competent authority is considered as action of promotion, then also the petitioners cannot succeed and the contention or objection by the petitioners against the impugned action cannot be entertained and granted. 31.4 There is nothing on record in light of which it can be said that the petitioners are better and more efficient/meritorious than not only the respondents No.4 to 7 but all other guards whose name appear in seniority list. Further, on one hand, the petitioners have not impleaded other persons who would compete with them on said criterion. 31.5 In this view of the matter, in present case, it is also not possible to direct the respondent authorities to consider the case of the petitioners for promotion to the post of forester or to consider their cases for appointment to the post of forester or to direct the respondents to consider their case for benefit of deemed date. 31.6 The petitioners, even otherwise, did not fall within purview of “consideration zone” for the process of selection and appointment from amongst the guards who secured first rank. 31.7 Therefore also, the petitioners demand for direction to consider their case for promotion and appointment to the post of forester by granting benefit of deemed date cannot be entertained. 32. On the other hand, if the action of the respondents is to be treated as process of appointment to the post of foresters, then also, the claim and contention of the petitioners should fail in light of Rule 7 read with Rule 6(iii). 32. On the other hand, if the action of the respondents is to be treated as process of appointment to the post of foresters, then also, the claim and contention of the petitioners should fail in light of Rule 7 read with Rule 6(iii). The clause (iii) of Rule 6 provides that the guards who secure first rank in the Guards Training Class are eligible to compete for selection for the appointment to the post of forester and Rule 7 brings out that the guards who secure first rank in Guards Training Class are not required to pass through the process of written examination and oral examination. In present case, the authority decided to make appointment from only one source viz. the guards who fall within the purview of Rule 6(iii). 32.1 Conjoint reading of Clause (iii) of Rule 6 with Rule 7 brings out that the guards who secure first position in their respective Guards Training Class/Examination can be selected for the post of forester without subjecting them to or without requiring them to pass through/without passing written examination and oral examination. 32.2 At the same time, conjoint reading of Clause (i) and (ii) of Rule 6 and the provision in the Manual and Rule 7 bring out that the requirement of calling names from employment exchange, undertaking the process of competition through written examination and oral examination will be attracted and will have to be undertaken in the cases where the appointment is to be made from amongst the candidates who fulfill the criteria prescribed under Rule 3, Rule 5, and Rule 6(i) and Rule (ii), but not in cases where selection and appointment is to be made only from one source viz. the guards who fall within Rule 6(iii) read with Rule 7. 32.3 In present case, the authority decided to make appointment from only one source viz. the guards who fall within the purview of Rule 6(iii). 32.4 As mentioned above, conjoint reading of Rules 2 to 7 bring out that if the competent authority opts for selecting and appointing persons to the post of forester from amongst only one source viz. 32.3 In present case, the authority decided to make appointment from only one source viz. the guards who fall within the purview of Rule 6(iii). 32.4 As mentioned above, conjoint reading of Rules 2 to 7 bring out that if the competent authority opts for selecting and appointing persons to the post of forester from amongst only one source viz. guards who secure first position in their respective Guards Training Class/Examination, then, such restricted selection cannot be faulted in light of above mentioned provisions and in such event, the guards who secured first position in their respective Guards Training Class/Examination are not required to pass through written examination or oral examination. 33. In this view of the matter, from this perspective also i.e. if the impugned action/process is considered process of appointment, the petition should fail. 34. In view of the fact that the petitioners have not challenged the Rules, the Court would refrain from making any observation or offering any comments with regard to the provision under Rules 5, 6 and 7 visavis the provision under the Manual and the recognized and settled principle applicable to the process of selection and appointment to the post in public employment/public domain i.e. granting opportunity to all eligible persons from public by publishing notice and inviting applications and/or by inviting names from employment exchange. 35. At this stage, it is necessary to mention that learned Additional Advocate General relied on the decision dated 29.7.2002 in Special Civil Application No.6898 of 2002. The said decision does not render assistance in present case because the contention raised in these petitions did not arise in said case and did not fall for consideration by the Court and that therefore, have not been considered. Further, the peculiar facts of present case (viz. that the authority issued corrigendum in respect of original order and declared that the order of promotion is actually order of appointment by direct selection) were not involved in the said decision and Court was not confronted with said facts. In the result, in light of foregoing discussion and for above mentioned reasons, the petitions fail. Foregoing discussion and above mentioned reasons have brought out that the objections raised by the petitioners against the impugned action are without merit and cannot be sustained. Consequently, the petitions fail and they deserve to be rejected and are accordingly rejected. Applications rejected.